Ross F. Earnshaw

The moving party sought a stay of payment of the outstanding balance of a costs award pending the outcome of a co‑defendant’s appeal of the underlying trial decision and costs order.

The court considered the test for a stay under the Courts of Justice Act and Rules of Civil Procedure, applying the principles from RJR‑MacDonald v. Canada (Attorney General).

Although the motion raised a serious issue regarding proportional allocation of costs between defendants, the moving party had not appealed the decision and therefore could not rely on the automatic stay provision.

The court found that the moving party failed to establish irreparable harm, as the evidence only expressed concern about potential difficulty recovering funds if the appeal succeeded.

The motion for a stay was dismissed.

The appellants appealed an order finding that a letter sent by the respondent prior to litigation was protected by absolute privilege.

The appellants argued that the prospect of litigation was too remote at the time the letter was sent.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the letter was a preparatory step taken with a view to judicial proceedings and therefore fell within the confines of absolute privilege.

The appellants appealed a trial judgment awarding the respondent damages for breach of a consulting and management contract.

The appellants argued that one of the corporate defendants was not a party to the contract and that the trial judge erred in calculating the damages period.

The Court of Appeal held that the non-party corporation was bound by the contract through its conduct and acceptance of services.

However, the Court found that the trial judge made a palpable and overriding error in interpreting the contract's term.

The Court allowed the appeal in part, reducing the damages award to reflect a five-year initial term.

The appellants appealed the dismissal of their action for breach of contract and negligent performance regarding the construction of a golf course reservoir.

On appeal, they brought a motion to amend their statement of claim to add a cause of action for negligent misrepresentation, which had not been pleaded at trial.

The Court of Appeal dismissed the motion, finding that the respondents would suffer non-compensable prejudice if the amendment were allowed post-trial.

The appeal was also dismissed, as the trial judge made no error in finding that the respondents complied with the amended agreement and that the agreement did not stipulate an average depth for the reservoir.

The parties agreed on the costs of the appeal and the motion for leave to appeal.

The Court of Appeal fixed the costs in the amount of $15,000, inclusive of disbursements and GST, to be paid by the appellant to the respondent.

The appellant sought to certify a class proceeding against a life insurance company, alleging negligent misrepresentation in the marketing of whole life policies with a 'vanishing premium' or premium offset feature.

The motion judge and Divisional Court refused certification.

The Court of Appeal dismissed the appeal, finding that the claims relied heavily on individual representations made by agents and individual reliance, meaning the action would ultimately break down into individual proceedings.

The common issues and preferable procedure requirements under section 5 of the Class Proceedings Act were not met.

The appellants appealed an order dismissing their action under Rule 24.01(1)(c).

The parties agreed the rule could not be invoked because the respondents had not served their affidavit of documents.

However, the Court of Appeal upheld the dismissal on the alternative ground that the action was an abuse of process, citing inordinate unexplained delay since 1996, conduct in prior related litigation, and failure to comply with a previous court order.

The appeal was dismissed with costs.

The appellants appealed the dismissal of their motions to certify their actions as class proceedings against life insurance companies regarding the sale of 'premium offset' or 'vanishing premium' policies.

The Divisional Court upheld the motions judges' decisions, finding that the claims were intrinsically individualistic, based on individual representations by agents, and lacked common issues necessary for class certification.

The appeals were dismissed.

The respondents purchased shares in a company from Mader and subsequently sued Mader and the company's accountants, Peat Marwick Thorne, for misrepresentation and breach of fiduciary duty regarding the company's financial status.

The trial judge awarded damages against all defendants.

The accountants appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in finding a fiduciary relationship and that the purchasers did not rely on the accountants' financial statements, having preferred to rely on Mader's assurances.